The Wyoming State Bar’s Committee on the Unauthorized Practice of Law recently proposed a substantial revision of the rules governing the authorized (and unauthorized) practice of law in the state. The Wyoming Supreme Court has the actual rule-making authority, but the UPL Committee’s voice carries weight, and its proposal for “Rule 7” is likely to shape future law. Proponents of UPL rules often claim that they are intended to protect consumers of legal services, but their effect is usually the opposite. The specifics of UPL rules can have a major impact on law-related fields: When “the practice of law” is broadly defined, it includes all or some of the activities of many non-lawyer professionals, and when “who may practice law” is narrowly defined, these non-lawyer professionals might find themselves in violation of the letter, if not the spirit, of UPL rules. The chilling effect bad UPL regulations can have on non-lawyer legal service providers restricts competition, which gives attorneys a broad monopoly and drives up costs for consumers.
When the Wyoming UPL Committee opened its proposal up for public comment, Responsive Law took the opportunity to weigh in. The verdict? Lukewarm support. While the proposed rule was an improvement on the existing definitions, it was lacking in a few key ways. Responsive Law offered its own version of the proposed rule, one which would better serve Wyoming’s consumers.
Responsive Law was far from the only commenter to find fault with the proposal. A common issue was the provision allowing certain non-lawyers to fill out “standardized forms” for their clients. This is a common-sense UPL exemption: It is clear that consumers are best served by allowing skilled professionals, such as licensed real estate brokers, to fill out the forms relevant to their work. The problem lay in the proviso that non-lawyers would not be allowed to “provide counsel or advice … with respect to the meaning, validity, or legal effect of the document or regarding the rights and obligations of the parties.” That’s right: Under the proposed rule, real estate brokers and title insurance companies could fill out some legal documents for you—but would be legally prohibited from telling you anything about said forms.
Likewise, other commenters pointed out that the list of “not prohibited” activities (that certain non-lawyers could perform) was missing important groups. Landmen, who play a key role in coordinating use agreements between energy extraction companies and Wyoming landowners, were left out in the cold. So were CPAs. These groups could have had their long-standing professional practice suddenly made illegal, and their members plead to be added to the list. The real problem is that no such list of exemptions could be exhaustive: Without a general rule describing what sets these professional activities apart, it's guaranteed that some worthy profession will be left off the list, to the detriment of consumers.
Three changes would drastically improve the proposed rule. First, the prohibition on non-lawyers providing advice or counsel concerning standardized forms should be dropped. Second, the specific profession/activity combinations listed as being exempt from UPL restrictions should be supplemented with a general rule. This general rule could easily be constructed by synthesizing the common aspects of the given exemptions. Finally, it remains true that law-related services offered for free should not be subject to broad UPL restrictions. Responsive Law made the case for enacting these changes, going so far as to offer a revised version of the proposed rule. If adopted by the Committee, these changes would ensure consumers’ access to services provided by non-lawyers, even if those services touch upon the practice of law.
Responsive Law's full comments, including the improved version of the proposed rule, are available here.
Danny Foster is a Responsive Law intern.
The World Justice Project recently published their annual Rule of Law Index, a comprehensive study of the rule of law in 99 countries. The fourth annual index compares countries in areas such as the absence of corruption, openness of government, and protection of fundamental human rights. Intended for policy makers, academics, and anyone going through post-Olympics international-competition withdrawal, the index provides a comprehensive empirical data set driven by surveys of over 100,000 households and legal professionals. The verdict: America's failure to provide access to justice seriously harms the rule of law here.
The results are in—so how did team USA perform? The index found that, overall, the United States successfully provides its citizens the myriad facets of the rule of law. The index praises our “well-functioning system of checks and balances,” and strong protection of fundamental rights. Compared to the other 99 countries surveyed, the US ranked a respectable 19th overall, putting us on par with France and Uruguay. The performance of America’s civil justice system as a whole was merely adequate: the US is slightly above the global average, ranking 27th out of 99. That puts us in the same neighborhood as Botswana, Slovenia, Chile and Greece. While not awful, this is hardly the sort of quality Americans expect and deserve from their legal system.
But the US underperforms—spectacularly so—in providing affordable and accessible civil justice. In that sub-category, we were ranked 65th out of 99 globally. For reference, that puts us in a four-way tie with Mongolia, Kyrgyzstan, and Uganda. The index notes that, “Civil legal assistance is frequently expensive or unavailable, and the gap between rich and poor individuals in terms of both actual use of and satisfaction with the court system is significant.” Among our regional group (covering North America and the Eurozone), the US was ranked last. That’s behind Bulgaria, for those of you keeping score. (Though we did perform better than Mexico, which was placed in the Latin American regional group.) And among other high-income countries, we're 29th out of 30, ahead of only the United Arab Emirates. Readers of this blog know that the lack of access to civil justice is an ongoing crisis for low and middle income Americans, but still the comparison is shocking. Most Americans would hardly consider these countries our peer group, but the fact is that when faced with a civil dispute, any non-wealthy American might as well live in Kyrgyzstan. But hey, it’s not all bad: our civil legal system is (barely) more accessible and affordable than Egypt’s is!
The take-away from all this is that the high cost (or plain unavailability) of civil legal assistance in the USA has created a crisis in access to justice whose depth would surprise most Americans. The US Olympic team could hardly be expected to succeed using wooden skis in this era of Kevlar and carbon fiber, and the US justice system is failing because it is stuck in the last century. There are many changes needed to bring civil justice within reach of all Americans, but they share a common thread: We need to enable innovation in the legal services industry. We should allow outside investment, allow multistate lawyers, and allow à la carte legal services—allow some alternative to the archaic guild structure. Innovation could revolutionize the supply of legal services, and pass the savings to consumers. Other countries have embraced (or at least avoided preventing) these innovations, and they are better for it. There’s no medal for access to justice, but it’s something we all deserve.
Danny Foster is a Responsive Law intern.
A recent article in National magazine by Mitch Kowalski, How to Make a Law Firm Float, provides an in-depth look at the Australian law firm Slater & Gordon Limited. This firm has paved the way for other flourishing law firms around the world by showing them how to run a law firm that provides excellent customer service as well as excellent legal services.
The article emphasizes the focus the firm places on bringing satisfaction to its clients. Potential clients start off their experience at Slaters by calling the firm, where specially trained call center staff will triage their legal problems and decide which of the lawyers in the firm’s 30 practice areas the client should be directed to. This alone is a major improvement over the process for finding legal help in the US. Most firms that handle legal matters for individuals and small businesses consist of a fewer than a dozen lawyers and specialize in only a handful of areas of law. For most Americans, finding a lawyer involves phone calls or in-person visits to multiple law firms. And in each of those calls or visits, the customer has to get in touch with the lawyer who might handle her case to decide whether the lawyer is the right one for her.
When it comes to fees, Kowalski praises the firm on its fixed prices that are laid out based off of the influence of the demography of their clients. Because of the large scale on which Slaters practices—70,000-80,000 inquiries a year—the firm is able to collect enough data about the cost of providing its services to determine flat fees which are low enough to be attractive to consumers while still allowing the firm to turn a profit.
Kowalski emphasizes that “at Slaters the focus is on making the business of law run better. There’s an implicit understanding that quality legal service is a given—and expected.”
How does Slater’s manage to provide quality legal services and quality customer service simultaneously? There are two factors that help it to do so. First, the firm uses non-lawyer expertise for the business side of its operations. Lawyers don’t know how to run a call center, or how to examine customer data to set appropriate fees, but business experts do. Second, the economies of scale from running a large enterprise—Slater’s employs about 1600 people—allow it to provide lower fees than the typical consumer law firm that’s about one percent of its size.
Both of these factors are enabled by Australia’s policy of allowing outside investment in law firms, which the US prohibits. American restrictions on outside investment not only make it harder for lawyers to implement innovative business models, and thus remove the benefits that American clients could see from a firm modeled after Slaters. In a previous blog post, we wrote at length about how outside investment can improve client access. Without outside investment, however, it’s impossible for US lawyers or businesspeople to raise the capital to create a mass-market law firm.
Slater is leading the way for other law firms in the future by implementing the fundamental changes necessary to provide appropriate, helpful services for their clients. By running the law firm as if it’s providing a service (which, after all, it is!), it’s able to better fit those services to the needs of its clients. If American law firms were able to adopted this business model, then the entire legal sector would be brought to a whole new level. The ABA and state policy makers need to reconsider their long-standing ban on outside investment, for the benefit of all Americans seeking legal help.
Saron Berhe is a Responsive Law intern.
Recently, we wrote a guest post for our friends over at UpCounsel on Fee Sharing, Innovation, and the Consumer Interest. You’ll have to click through to read the whole thing, but (briefly) the argument runs as follows:
American Bar Association Model Rule 5.4 prohibits lawyers and law firms from sharing legal fees with non-lawyers, and while this might sound innocuous, in reality Rule 5.4 is hurting everyone who doesn’t have a law degree. The two justifications often given for the ban on fee sharing (the pernicious influence of non-lawyers and fear about the commercialization of the practice of law) simply don’t stand up to scrutiny. The most salient impact of Rule 5.4 is that it stifles innovation in the legal services industry – innovation that could provide consumers with more value for their dollar when faced with a legal situation. Despite successful liberalization of similar rules in other common-law countries like Australia and the UK, here in the US the American Bar Association has refused to even consider relaxing Rule 5.4. The ray of hope? An underreported Jacoby & Meyers lawsuit against the states of New York, Connecticut, and New Jersey is still working its way through the court system. If successful, these cases could overturn the prohibitions on fee sharing and outside investment, giving the American legal services industry a much-needed breath of fresh air - and consumers’ wallets a much-needed break.
Danny Foster is a Responsive Law intern.
Richard Zorza has an excellent blog post this week on a new program announced in New York Chief Judge Lippman’s 2014 State of the Judiciary Speech. The Court Navigator pilot program will provide “trained volunteer non-lawyers” to help unrepresented New Yorkers in Brooklyn and the Bronx navigate Housing Court and consumer debt cases. Here at Responsive Law, we have long argued that providing consumers with non-lawyer options for legal assistance is a core issue for providing real access to justice throughout society. We applaud Chief Judge Lippman’s continued efforts to address the legal needs of the most vulnerable New Yorkers.
But even as we cheer, we must also exhort Chief Judge Lippman, and New York as a whole, to push onward. Programs like the Court Navigators should be embraced and expanded, and policymakers should seek other ways to increase consumer choice and access to legal services. In England, for example, litigants are entitled to the assistance of a “McKenzie friend”—someone who may provide support and advice in navigating the case, and crucially, need not be a licensed attorney. Likewise, New York Senate Bill 427, which Responsive Law has endorsed, would allow New Yorkers to choose non-lawyer representation in housing court cases. Both of these would provide much-needed legal assistance to those who, unable to afford the price of a full attorney, today must to stand in court alone. The Court Navigator program is certainly good news, but if it is truly a “milestone in the development of access to justice,” as Mr. Zorza claims, then we have miles further to go.
There's an excellent blog post by Ron Friedmann at Prism Legal arguing for abolishing the prohibition on outside investment in law practices, a position that Responsive Law strongly supports. In a responding blog post, Brian Focht at The Cyber Advocate claims that only bankers would benefit from lifting this restriction, and that those who want to do so are only interested in making more money. It's a common objection, so we'd like to address it here.
"Most of the people asking for non-lawyer ownership in law firms have a vested interest in the deregulation of the practice of law. Whether they want to be the law’s version of Turbo Tax, or whether they simply want to earn profitable returns out of a law firm’s revenue, how many of them really and truly want to create a better, cheaper, and more accessible law firm? How many of them really want to improve access to justice? How many of them just want more ways to make more money?"
Since Responsive Law's purpose is to speak on behalf of users of the legal system, we are most certainly taking this position as a way to improve access to justice and not as a way to make more money. We've testified numerous times to the ABA and state policymakers about the benefits of non-lawyer ownership. And we're a nonprofit organization, so we certainly don't have a financial stake in the improvement of the system.
The greatest benefit of outside investment won't come from a change in the practice of existing firms. Instead, it will come as other companies, both new and existing, are able to offer law as a consumer service on a scale that solos and small firms—the predominant deliverer of services that the average person needs, such as wills, family law, housing, and employment issues—are unable to offer. For example, a national company could develop training and supervision protocols for lawyers, teaching them how to provide legal services to their clients and providing not only the legal expertise they need, but also letting those lawyers focus on their core competency of practicing law, while letting a corporate office handle the business side of practice.
There is a clear disconnect between the 80 to 90 percent of Americans who cannot afford basic legal services and the growing number of recent law school graduates who currently have no employment prospects. Corporately-provided legal services would bridge this gap and allow the true democratization of law. Consumers would be able to take advantage of economies of scale that do not exist for small firms and newly-minted lawyers would be able to receive training and employment providing legal services at an affordable price.
Concerns that lawyers would shirk their ethical duties under pressure from corporate owners and investors are misplaced. Lawyers in every setting face financial pressures to act against their clients' interests. For example, associates at large firms face pressure to pad hours to meet billable hour goals. However, this financial pressure does not relieve an attorney of the obligation to follow the rules of professional conduct, and neither would financial pressure from shareholders. As an additional safeguard, the US could adopt a version of Australia's requirement that each firm with outside investment designate an officer to be responsible and liable for ethics violations.
Both the UK and Australia have permitted non-lawyer ownership for several years, and have shown that consumers benefit from the innovation it fosters, while predictions of diminished lawyer professionalism have been proven wrong. It is past time for the US to join its international brethren in adopting this reform.
New York State Chief Judge Jonathan Lippman has announced a new rule intended to better supply legal aid to poor New Yorkers. Specifically, in-house corporate attorneys who work in New York but are not members of the New York State Bar will now be permitted to do pro bono work in New York civil and criminal cases. Previously, only attorneys licensed to practice in New York were able to volunteer their expertise without restrictions. The change is intended to widen the volunteer pool that groups like the Legal Aid Society draw on to provide legal assistance to New Yorkers unable to afford a lawyer. The New York Times reported that “the measure has broad support, not only from the state and city bar associations, but from several big businesses seeking to burnish their image.” Responsive Law likewise supports this development, but New Yorkers deserve more.
Responsive Law has long been a supporter of Judge Lippman’s efforts to facilitate poor and middle-class New Yorkers’ access to their legal system. However, this rule change is minor compared to the scope of the problem. The Legal Aid Society took 48,000 cases last year, but they were forced to turn away eight times that number – over 300,000. Why? Because there are not enough lawyers to meet the demand for legal services.
This rule change is a positive development, but according to Judge Lippman’s own estimate, it will only increase the pool of potential volunteers by a mere 5,000 lawyers. This will barely make a dent in New Yorkers’ unmet need for legal advice. More profound reforms are needed to give all New Yorkers access to their legal system. Responsive Law has a two-pronged solution to the problem.
First, competent non-lawyers should be permitted to supply legal services. Currently, social service organizations’ attempts to assist New Yorkers in navigating the courts are stifled by the requirement that only attorneys may provide legal services. These organizations should be able to use people who have expertise, but not a law degree, to provide assistance to those they serve. Non-lawyers are perfectly capable of helping to navigate the court process, a service which in many cases will be more valuable than the full legal analysis offered by attorneys. Imagine how many people Legal Aid could help every year if their volunteers could receive a few weeks or months of training in a specific field, rather than needing to spend years and thousands of dollars to get a general-purpose law degree.
Second, New York should allow outside investment in legal service providers, which is currently prohibited. There may be ways for lawyers in the private sector to deliver their services more efficiently, bringing the cost of a lawyer within the reach of even poor New Yorkers. Services like TurboTax and H&R Block have helped millions of Americans by making accounting expertise cheaper and more widely available. Where is the innovator who will do the same for legal matters? They have been locked out of the industry by these outdated regulations. New York, and likewise the rest of the United States, should look to the success of liberated legal industries in Australia and the UK, which have lifted the restrictions without harm to consumers. (For more about mass-market legal services, please see our testimony.)
The public’s need is too vast to be serviced by the small number of lawyers who work or volunteer in low-income legal assistance. Increasing the number of lawyers who are allowed to volunteer their services is a step in the right direction, but we must make great strides to provide justice to all New Yorkers.
California Governor Jerry Brown has vetoed Assembly Bill 888, which would have given the State Bar of California additional incentive to pursue civil lawsuits against those it considered to be engaged in the unauthorized practice of law.If the bill had been signed into law, the bar would have allowed the awarding of attorneys fees to the br when it successfully sued its economic competitors. Service providers such as legal document assistants, tax preparers, and financial planners would have all faced a strong disincentive to provide their services to consumers, under threat of a lawsuit from the bar and the possibliity of paying both damages and lawyers' fees should they lose such a suit.
Responsive Law led the effort against passage of AB 888. Its testimony led to amendments to the bill which would have required money the State Bar received from UPL cases to go toward victim restitution, rather than to the general treasury of the State Bar. However, the bill still did not require a showing of actual consumer harm for a court to find that UPL had occurred. Since Responsive Law believes that any UPL case that does not involve consumer harm is merely economic protectionism for lawyers, we refused to drop our opposition to the bill. Governor Brown's veto message noted that the State Bar and state and local prosecutors already have sufficient power to enforce UPL law, indicating agreement with our position that this bill was a power grab by the State Bar, and not an honest attempt to protect consumers.
What a difference two years can make!
A couple of years ago, I wrote about the ABA Journal's 2011 list of "Legal Rebels"—lawyers who are changing the legal profession. The 2011 list consisted mostly of lawyers who were making minor adjustments to the structure of large law firms. Only two of the ten Legal Rebels that year were doing anything to make law more accessible to the general public. The 2011 list continued the magazine's trend of largely ignoring those who made a real difference in favor of corporate lawyers who were making changes that inched the profession toward the 21st century.
The ABA Journal has just released its 2013 Legal Rebels list, and the list is quite different from two years ago. Not one of the ten lawyers on the list comes from a large law firm, and several are true innovators. One of this year's honorees is Raj Abhyanker, the founder of Legal Force, a Palo-Alto company that offers customers a storefront of user-friendly legal books and forms to choose from and affordable 15-minute consultations with onsite lawyers. Another slot belongs to Michael Poulshock, whose Hammurabi Project aims to automate large bosies of law to make them understandable and usable by both lawyers and nonlawyers. And Renee Knake and Daniel Katz of Michigan State University's Reinvent Law program are training law students to reach the unserved middle class using innovative business models and technology.
In 2011, I noted that many innovators were hampered by prohibitions on outside investment in law practices. Those bans are still in place, but not if some of these Legal Rebels have anything to say about it. Professor Knake's scholarship focuses on these bans, which she believes are unconstitutional. The future may be closer than we think.